What is Probate?

Probate is the legal process of carrying out someone’s last will or testament. In it’s most basic terms, it’s the process by which someone’s assets and affairs are handled and distributed after their death.

More Formal Legal Definition of Probate

The act or process of proving a will. Probate is required in order to enforce the last will and testament of the deceased. There are two types of probate regarding estates:

Administrative Probate is the process by which the individual seeking clarification or enforcement of the will, is appointed a “personal representative,” to assist with probate of a will or sorting through intestacy (deceased without a will). A personal representative may be appointed by the Register of Wills.

Judicial Probate (Orphans’ Court)- is a method in which the Court hears matters on contested estates, validity of wills. and legal questions which cannot be solved through Administrative Probate. The Orphans’ Court for each estate is located in each county in the State, and Baltimore City. Often, legal title must be determined by the Circuit Court.

What then is “Estate Administration”?

Estate administration and probate are used interchangeably by some. However, we view them as slightly different. Not all assets of the deceased are actually “probate assets.” In its broadest sense, estate administration means anything relating to the deceased’s affairs.

Those who think of estate administration and probate as one in the same are not necessarily wrong. The “estate” must be “administered”, that is, the person’s assets must be inventoried, debts must be paid, and then heirs must receive their share.

If the person had a will, the will is taken to Register of Wills, and to the Orphan’s Court, a probate is filed and the estate administration process begins.

Estate administration, or probate, can be formal or informal. An informal probate process is available for “small” estates, meaning any estate where the person who died has property that is worth $50,000 or less, or, if the person left behind a spouse, or $100,000 or less if the person left behind a spouse only and no children. Typically the administration of a small estate will not require a court hearing and will be much simpler than the administration of an estate that includes more assets. Modified Administration is more complicated than simple administration but easier than a full estate administration, and is only available in limited circumstances.

Personal Representatives

The first step in estate administration is for a personal representative to be appointed to “administer”, or manage, the estate. The personal representative might be an individual, like a family member, or in some cases an institution such as a bank. If a person left a will then often a personal representative will have been named in that will. If not, the Maryland Orphan’s Court must appoint the personal representative and the court will typically appoint a family member.

Inventory of the Estate

The first task of the personal representative is to inventory all of the deceased person’s assets or “estate”. The next task is to notify all of the deceased person’s creditors of the person’s death and to pay them if possible. If there is not enough money to pay all the creditor’s then court approval may be required to decide which creditors to pay.

Distribute Estate to Heirs

After creditors have been paid, if there is still money left over then it will be distributed according to the will, if any, or if there is no will, then according to Maryland’s law of intestate succession. Basically what this means is that the State of Maryland will decide who inherits and how much they receive.

Other estate administration tasks include filing tax returns for the estate, filing suit if the estate is owed money that has not been paid, or defending the will if it is contested. If there is litigation the estate can pay the legal fees. The final task is to close the estate.